State v. Trimble

• Decision Date: 09 February 1922
• Docket Number: No. 22964.,22964.
• Citation: 292 Mo. 333,238 S.W. 809
• Parties: STATE ex rel. HARBIS v. TRIMBLE et al., Judges.
• Court: Missouri Supreme Court

238 S.W. 809

292 Mo. 333

STATE ex rel. HARBIS v. TRIMBLE et al., Judges.

No. 22964.

Supreme Court of Missouri, in Banc.

February 9, 1922.

Motion for Rehearing Denied February 21, 1922.

Certiorari by the State of Missouri, at the relation of James Harbis, against Francis H. Trimble and others, Judges of the Kansas City Court of Appeals, to review a judgment of that court reversing a judgment of the circuit court in favor of one Harbis in his action against " the Cudahy Packing Company. Writ quashed.

See, also, 223 S. W. 578.

L. A. Laughlin, E. H. Gamble, S. L. Trusty, and J. N. Beery, all of Kansas City, for petitioner.

McFadden & Claflin, Miller, Camack & Winger, and S. J. McCulloch, all of Kansas City, for respondents.

JAMES T. BLAIR, C. J.

Certiorari. The writ brings here the record of the Kansas City Court of Appeals in the case of Harbis v. Cudahy Packing Company, 241 S. W. —. Harbis, who is a resident of this state, had recovered judgment against the packing company for injuries he had received while in that company's employ in the state of Kansas. The action was brought under the Workmen's Compensation Act of Kansas (Gen. St. 1915, §§ 5896-5942). On appeal the judgment was reversed. It is contended the Court of Appeals brought its opinion into conflict with decisions of this court in respects hereafter to be mentioned. The Court of Appeals stated that the packing company contended that relator had no cause of action under the Workmen's Compensation Act of Kansas which he could enforce in a Missouri court, and relied in this contention upon a section of that act (section 5930) which provides that—

"No action or proceeding provided for in this act shall be brought or maintained outside of the state of Kansas."

The court founded its decision upon this provision. It held it was enforceable according to its terms, and that the suit could not be maintained in Missouri. It reversed the judgment for $222 which relator had recovered against the packing company.

In order to understand the question presented it will be necessary to set out the part of the opinion which shows the view the Court of Appeals took upon the question it decided. It is as follows:

"The first and principal contention urged by defendant in this court is that the circuit court of Missouri has no jurisdiction of this cause, and cites section 20 of the Workmen's Compensation Act of Kansas, providing that `no action or proceeding provided for in this act shall be maintained outside of the State of Kansas.' This was section 36, c. 218, Session Laws of Kansas 1911. The original act of 1911 was amended in some respects by chapter 216, Session Laws of 1913. In sections 11 and 20 of the amended act of 1913 the same clause was retained verbatim (section 5930, supra).

"In Cook v. Hines, Director General, decided at this term and not yet reported,¹ this court held: `It cannot be successfully contended that plaintiff has not the right in law to institute his suit in Missouri and if he does so the laws of the state where the accident occurred determined whether or not any cause of action exists for and on account of the accident'—citing Keele v. Ry. Co., 258 Mo 62, 167 S. W. 433; Yost v. Rd., 245 Mo. 219, 149 S. W. 577; Newlin v. Rd. Co., 222 Mo. 375, 121 S. W. 125.

"In administering the laws of another state we administer them, not our own; the reason therefor being that, if a litigant has no cause of action in the courts of the state in which his injury occurred, he has none here. It behooves us, therefore, at the threshold of this case to determine the construction placed upon the particular question complained of by the defendant by the courts of the state of Kansas, where the injury is alleged to have occurred.

"The Kansas Courts have held that the relation between employer and employé established by the Workmen's Compensation Act of Kansas is contractual. In Shade v. Lime & Cement Co., 93 Kan. loc. cit. 257, 144, Pac. loc. cit. 250, the court held: `Briefly it may be said that the operation of the system of compensation provided by the statute rests upon the free consent of the employer and employé, given in the manner provided by the act. Being elective, the act does not become effective as to employer or employé unless such employer or employé chooses to come within its provision. Having once elected to come within the provision of the act, as long as such election remains in force the act is effective as to the party or parties making the election and in case an employer and employé both elect to come within the provisions of the act the act itself then becomes a part of the contract of employment and can be enforced between the parties as such.' Deibeikis v. Link-Belt Co., 231 Ill. 454, 455, 104 N. E. 211, 216, Ann. Cas. 1915A, 241.

"The rule is fundamental that trial courts in any state will enforce the transitory cause of action accruing in another state and has been so held by the United States courts and the Supreme Courts of the various states. It will not be necessary to quote from these decisions. But reference is made to the following: Northern Pacific Ry. Co. v. Babcock, 154 U. S. 190, 14 Sup. Ct. 978, 38 L. Ed. 958; Herrick v. Ry., 31 Minn. 11, 16 N. W. 413, 47 Am. Rep. 771; Dennick v. Rd. Co., 103 U. S. 11, 17, 26 L. Ed. 439; Texas & Pacific Ry. Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829; Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224, 36 L. Ed. 1123. We therefore hold that the relation of employer and employé under the act in question is a contractual one, and that the Missouri courts have jurisdiction of the subject-matter and parties under proper personal service.

"The testimony tends to show that plaintiff has been in the employ of defendant company on two occasions, the last employment being in the month of July, 1916, and that the accident occurred July 20, 1917. Section 5928, General Statutes of Kansas, provides: `All employers as defined by and entitled to come within the provisions of this act shall be presumed to have done so unless such employer shall file with the Secretary of the State at Topeka, Kansas, a written statement that he elects not to accept thereunder, and thereafter any such employer desiring to change his election shall only do so by filing a written declaration thereof with the Secretary of State. Notice of such election shall be forthwith posted by such employer in conspicuous places in and about his place of business.'

"Section 5939 of such statute provides: `Every employé entitled to come within the provisions of this act shall be presumed to have done so unless such employé shall file with the Secretary of State before injured a written declaration that he elects not to accept thereunder and thereafter any such employé desiring to change his election shall only do so by filing a written declaration thereof with the Secretary of State. Any contract wherein an employer requires an employé as a condition of employment that he shall not elect to come within the provision of this act shall be void.'

"The testimony tends to show that neither employer nor employé in this case filed with the Secretary of State before the injury complained of occurred his declaration electing not to accept under the acts; that neither had taken any action to place himself without the operation of said law, and therefore both are presumed to have been operating under the contract of employment as defined by the act. Having, therefore, accepted such contract, plaintiff may not be permitted to institute his suit outside the state of Kansas in direct violation of one of the express covenants thereof. For, the act being itself a part of the contract of employment, then that provision thereof forbidding suit to be brought outside of Kansas is a part of the contract and cannot be disregarded. Indeed, it can readily be seen that one of the inducements that would lead one of the parties to elect to come under the act is the important consideration that, if a controversy should unfortunately arise between the parties to the contract, suit could not be brought except in the forum of the place of the...